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Bangalore District Court
Bhagyamma T.S vs Jagadeesh N on 21 April, 2025
KABC020133202022
BEFORE THE COURT OF 10th ADDITIONAL SMALL CAUSES
AND MOTOR ACCIDENT CLAIMS TRIBUNAL, AT:
BENGALURU
(SCCH-16)
Present: Sri. Mohammed Yunus Athani
B.A.,LL.B.,
X Addl. Judge, Court of Small Causes
& Member, MACT, Bengaluru.
MVC No.2200/2022
Dated this 21st day of April, 2025
Petitioners: 1. Bhagyamma T. S. W/o Late V. S.
Vishwanath Reddy,
Aged about 47 years,
2. B. V. Thanush S/o Late V. S.
Vishwanath Reddy,
Aged about 19 years,
3. B. V. Tharun S/o Late V. S.
Vishwanath Reddy,
Aged about 16 years,
4. Sriram Reddy V. B. S/o Chinna
Byreddy,
Aged about 75 years,
5. Chinnamma W/o Sriram Reddy V.B.,
Aged about 67 years,
(Since 3rd petitioner is minor, rep. by
2 MVC No.2200/2022
his mother and natural guardian
Bhagyamma.)
All are residing at Vempalli Village,
Yadaganahalli Post,
Srinivasapura Taluk,
Kolar District.
Also at :
C/o Govindaswamy,
6th Main, 2nd Cross, Ground Floor,
Thayappa Garden, Bannergatta
Road, Bilekahalli,
Bengaluru - 560 076.
(Sri V. G. Venkatreddy, Advocate)
V/s
Respondents: 1. Jagadeesh N. S/o Nanjundachari,
Alavata Village, J. Thimmasandra
Post, Srinivasapura Taluk,
Kolar District - 563 135.
(RC owner of Splendor Plus
Motorcycle bearing Reg.
No.KA-07-EC-8078)
(Ex-parte)
2. IFFCO-TOKIO General Ins. Co. Ltd.,
Shanthi Towers, 5th Floor, No.141,
3rd Main, East of NGEF Layout,
Kasturinagar, Bengaluru - 560 043.
(Policy No.M0370463, valid from
05-08-2019 to 04-08-2024)
(Sri S. Maheswara, Advocate)
3 MVC No.2200/2022
JUDGMENT
This is petition filed under Section 166 of Motor
Vehicles Act, 1988, seeking compensation of Rs.50,00,000/-
from the respondents, on account of death of V.S.
Vishwanath Reddy, who is husband of petitioner No.1, father
of petitioners No.2 and 3 and son of petitioners No.4 and 5,
in a road traffic accident.
2. The brief facts of the case are as follows:
On 24-02-2022, the deceased V.S. Vishwanath Reddy
was riding the Super XL Heavy Duty vehicle bearing Reg.
No.KA-67-H-0765 on the extreme left side on Vempalli-
Korigepalli main road, slowly and cautiously, by observing the
traffic rules and regulations. While so proceeding at about
6.30 p.m., when he reached at Yaraguntekatte Vempalli Cross,
Srinivasapura Taluk, Kolar District, suddenly the rider of
Splendor Plus two-wheeler bearing Reg. No.KA-07-EC-8078
came from opposite direction in a rash and negligent
manner, endangering to human life, without observing any of
4 MVC No.2200/2022the traffic rules and regulations and came to his extreme
right i.e. wrong side and dashed against the vehicle of the
deceased and caused the accident. Due to the said impact,
the deceased fell down and sustained grievous injuries all
over the body. Immediately after the accident, the deceased
was shifted to Addagal Hospital, wherein he took first aid
treatment and then he was referred to Srinivasapura
Government Hospital, from there referred to S.N.R. Hospital,
further referred to Victoria Hospital, Bengaluru, wherein even
after better and expert treatment to save the life, the
deceased V.S. Vishwanath Reddy was succumbed to fatal
injuries and died on 28-02-2022 at about 4.00 a.m. Earlier to
the accident, the deceased was working as carpenter-cum-
agriculturist and also selling cows to different markets and
was earning a sum of Rs.40,000/- per month. He was
contributing his entire earnings to his family. Due to untimely
death of a sole bread earner, the petitioners are struggling
for their livelihood. The Gownapalli Police have registered the
5 MVC No.2200/2022
case against the rider of the said Splendor Plus motorcycle for
the offences punishable under Section 279, 337 and 304(A) of
I.P.C. The respondent No.1 is the owner and respondent No.2
is the insurer of the offending vehicle. Hence, they are jointly
and severally liable to pay the compensation to the
petitioners. Therefore, it is prayed to allow the petition and
award compensation of Rs.50,00,000/- with interest.
3. On service of notice to the respondents, the
respondent No.2 appeared through its counsel and filed the
written statement. Whereas, the respondent No.1 did not
choose to appear and remained absent. Hence, the
respondent No.1 is placed as ex-parte.
4. The respondent No.2 in its written statement has
denied all the allegations made in the petition. It has
admitted the issuance of insurance policy in respect of
Splendor Plus motorcycle bearing No.KA-07-EC-8078 in favour
of respondent No.1 and its validity as on the date of accident.
6 MVC No.2200/2022
It seeks protection under Sections 56, 66, 147 and 149(2) of
Motor Vehicles Act. It has contended that, the petition is bad
for non compliance of provisions under Sections 134(c) and
158(6) of Motor Vehicles Act. Further it is contended that, the
splendor plus motorcycle was not at all involved in the
alleged accident, the deceased himself was solely responsible
for the alleged accident. The alleged accident took place on
24-02-2022, however the complaint lodged on 28-02-2022,
after the lapse of 4 days from the date of alleged accident. No
valid reasons are assigned for the delay in lodging the
complaint. The splendor plus motorcycle was falsely
implicated by the petitioners colluding with the owner of the
vehicle and the police to get the compensation from the
respondent No.2. The jurisdictional police after thorough
investigation have filed a charge-sheet U/Sec.3(1) R/w Section
181 of Motor Vehicles Act, stating that the rider of the
splendor plus motorcycle was not holding valid and effective
driving licence as on the date of accident and the respondent
7 MVC No.2200/2022
No.1 knowling that the said rider was not holding valid
driving licence to ride the said vehicle has entrusted the
vehicle to said rider and thereby committed breach of terms
and conditions of the policy. Further it is contended that, the
deceased was not wearing helmet as on the date of accident
and the rider of the splendor plus motorcycle was not holding
valid and effective driving licence to ride the same, as on the
date of accident. The splendor plus motorcycle was not
having valid fitness certificate and permit, as on the date of
accident. Hence, the respondent No.2 is not liable to
indemnify the respondent No.1, for any compensation
awarded to the petitioners by this Court. It has denied the
age, income and avocation of the deceased and treatment
taken by him. Further, it has sought permission to contest
even on behalf of respondent No.1, as per Section 170 of the
Motor Vehicles Act. Further it is contended that, the
compensation claimed is highly excessive and exorbitant. For
8 MVC No.2200/2022
the above denials and contentions, it is prayed to dismiss the
petition.
5. On the basis of rival pleadings of both the sides, the
following issues are framed:
ISSUES
1. Whether the petitioners prove that,
deceased V.S. Vishwanath Reddy,
succumbed to the injuries sustained in
road traffic accident, alleged to have
been occurred on 24-02-2022 at about
6.30 p.m., at Yaraguntekatte Vempalli
Cross, Srinivasapura Taluk, Kolar
District, due to the rash and negligent
riding of the rider of the Splendor Plus
Two-wheeler bearing registration
No.KA-07-EC-8078 ?
2. Whether the petitioners are entitled to
compensation? If so, what is the
quantum and from whom ?
3. What order or Award ?
9 MVC No.2200/2022
6. In order to prove their case, the petitioner No.1 has
got examined herself as P.W.1 and got marked total 18
documents as Ex.P.1 to Ex.P.18. On the other hand, the
respondent No.2 has examined the Superintendent of RTO,
Kolar as R.W.1 and and its representative/Legal Executive as
R.W.2 and got marked total 3 documents as Ex.R.1 to 3.
7. I have heard the arguments of both the sides and
perused the entire material placed on record.
8. My findings on the above issues are as under:
Issue No.1: Affirmative
Issue No.2: Partly Affirmative
Issue No.3: As per the final order, for the
following:
REASONS
9. Issue No.1: It is specific case of the petitioners that, on
24-02-2022 at about 6.30 p.m.,, when the deceased V.S.
Vishwanath Reddy was riding the Super XL Heavy Duty
10 MVC No.2200/2022
vehicle bearing Reg. No.KA-67-H-0765 on the extreme left
side on Vempalli-Korigepalli main road, slowly and
cautiously, by observing the traffic rules and regulations,
near Yaraguntekatte Vempalli Cross, Srinivasapura Taluk,
Kolar District, suddenly the rider of offending Splendor Plus
two-wheeler bearing Reg. No.KA-07-EC-8078, came from
opposite direction in a rash and negligent manner, without
observing any of the traffic rules and regulations, to his
extreme right i.e. wrong side and dashed against the vehicle
of the deceased. Due to the said impact, the deceased fell
down and sustained grievous injuries all over the body and
succumbed to said injuries on 28-02-2022 at about 4.00 a.m.,
while undergoing treatment at Victoria Hospital, Bengaluru.
Further it is contended that, earlier to the accident, the
deceased was working as carpenter-cum-agriculturist and
also selling cows to different markets and was earning a
sum of Rs.40,000/- per month. He was contributing his
entire earnings to his family. Due to untimely death of a sole
11 MVC No.2200/2022
bread earner, the petitioners are struggling for their
livelihood.
10. In order to prove their case, the petitioner No.1 has
got examined herself as P.W.1 by filing her examination-in-
chief affidavit, wherein she has reiterated the entire
averments made in the petition. Further, in support of their
oral evidence, the petitioners have got marked total 18
documents as Ex.P.1 to 18. Out of the said documents,
Ex.P.1 is true copy of F.I.R., Ex.P.2 is true copy of post-
mortem report, Ex.P.3 is certified copy of charge-sheet,
Ex.P.4 is certified copy of sketch, Ex.P.5 is certified copy of
spot mahazar, Ex.P.6 is certified copy of inquest, Ex.P.7 is
certified copy of Motor Vehicles Accident Report, Ex.P.8 is
certified copy first information statement, Ex.P.9 are medical
bills (total 3), Ex.P.10 to 13 are notarised copy of Aadhar
cards of petitioners No.1, 3 to 5, Ex.P.14 is original eye
donation certificate, Ex.P.15 is Aadhar card of petitioner
12 MVC No.2200/2022
No.2, Ex.P.16 are x-rays (total 2), Ex.P.17 are scanning
reports (total 3) and Ex.P.18 is death certificate.
11. On meticulously going through the police documents
marked as Ex.P.1 to 8, prima-facia it reveals that, the
accident in question has taken place due to rash and
negligent riding of the rider of offending Hero Splendor Plus
motorcycle bearing No.KA-07-EC-8078 and dashing the same
to the motorcycle of the deceased from opposite direction.
Further it reveals that, due to said impact, deceased V.S.
Vishwanath Reddy has sustained grievous injuries on his
head, legs and other parts of the body and succumbed to
said injuries on 28-02-2022 at about 4.00 a.m., while
undergoing treatment at Victoria Hospital, Bengaluru. The
investigation officer in his final report/charge-sheet, which is
marked as Ex.P.3, has clearly stated that, the said accident
has taken place due to rash and negligent riding of the rider
of offending Hero Splendor Plus motorcycle bearing No.KA-
13 MVC No.2200/2022
07-EC-8078 and dashing the said vehicle to the motorcycle of
the deceased from opposite direction.
12. At the outset, is it pertinent to note that, in the present
case, the date, time and place of accident, the issuance of
insurance policy by the respondent No.2 in respect of Hero
Splendor Plus motorcycle bearing No.KA-07-EC-8078 and its
validity as on the date of accident, are not in dispute.
Further, the oral and documentary evidence adduced by the
petitioners has remained undisputed by the owner of
offending vehicle/Respondent No.1, as he did not choose to
appear and contest the case of the petitioners. Whereas, the
respondent No.2 insurance company has specifically denied
the above averred facts and circumstances of the accident
and taken specific defence that, the offending Hero
Splendor Plus motorcycle bearing No.KA-07-EC-8078 was not
at all involved in the accident in question and the said
accident has occurred due to the sole negligence of the
deceased. But, the respondent No.2 has failed to establish
14 MVC No.2200/2022
the said contentions. Except the self serving statements of
the R.W.2, who is the representative/Legal Executive of
respondent No.2 insurance company, there is absolutely no
other oral or documentary evidence placed on record by the
respondent No.2 to show that, the said accident has taken
place due to rash and negligent riding of the deceased
himself and the offending Splendor Plus motorcycle bearing
No.KA-07-EC-8078 was not involved in the said accident.
Except the self serving statements of R.W.2, there is no other
rebuttal evidence produced by the respondents to disprove
the oral and documentary evidence placed on record by the
petitioners. On the other hand, the oral and documentary
evidence placed on record by the petitioners clearly
establishes that, the accident in question has taken place
due to rash and negligent riding of the rider of offending
Hero Splendor Plus motorcycle bearing No.KA-07-EC-8078
and dashing the same to the motorcycle of the deceased
from opposite direction and due to said impact the
15 MVC No.2200/2022
deceased V.S. Vishwanath Reddy has sustained grievous
injuries on his head, legs and other parts of the body and
succumbed to said injuries on 28-02-2022 at about 4.00 a.m.,
while undergoing treatment at Victoria Hospital, Bengaluru.
Though, the learned counsel for respondent No.2 has cross-
examined P.W.1 in length, nothing worth has been elicited
from her mouth which creates doubt on the veracity of her
evidence or which goes to show that, the said accident has
occurred due to negligence on the part of the deceased
himself. Further, the P.W.1 has unequivocally denied the
suggestions made in her cross-examination that, the said
accident has taken place due to rash and negligent riding of
the motorcycle by the deceased himself and there was no
fault on the part of the rider of offending Hero Splendor Plus
motorcycle bearing No.KA-07-EC-8078.
13. Further, the Ex.P.4 sketch and Ex.P.5 spot mahazar
also clearly speaks that, the said accident has taken place on
the extreme left side of 8 feet wide Kuregepalli-Vempalli
16 MVC No.2200/2022
road, near Yaraguntekatte Vempalli cross, Srinivasapura
Taluk, Kolar District, due to dashing of offending Hero
Splendor Plus motorcycle bearing No.KA-07-EC-8078 to the
motorcycle of the deceased from opposite direction. Further
it is pertinent to note, as per Ex.P.7 Motor Vehicle Accident
report, the accident has not occurred due to any mechanical
defects in the vehicles involved in the accident. When the
accident has not taken place due to any mechanical defects
in the offending vehicle and there was no negligence on the
part of the deceased, then in the present facts and
circumstances of the case, it can be presumed that, the said
accident had occurred due to rash and negligent riding of
the rider of offending vehicle. There is absolutely no rebuttal
evidence produced by the respondents to disprove the case
of the petitioners and even nothing has been elicited in the
cross-examination of P.W.1 to show that, the said accident
has occurred due to the negligence of the deceased himself
17 MVC No.2200/2022
or there was any contributory negligence on his part in the
cause of accident.
14. Further, the Ex.P.2 Post-mortem report clearly speaks
that, the deceased V.S. Vishwanath Reddy has died due to
head injury sustained in the road traffic accident. The
investigation officer in his Ex.P.3 final report/charge-sheet
has clearly stated that, the accident has taken place due to
rash and negligent riding of the rider of the Hero Splendor
Plus motorcycle bearing No.KA-07-EC-8078 and the
deceased has sustained grievous injuries on his head, legs
and other parts of the body and succumbed to said injuries
on 28-02-2022 at about 4.00 a.m., while undergoing
treatment at Victoria Hospital, Bengaluru. Admittedly, the
said final report/charge-sheet has not been challenged by
the rider or the owner of offending vehicle. In such
circumstances, there is no impediment to believe the final
report filed by the investigation officer and other police
records, with regard to date, time and place of accident,
18 MVC No.2200/2022
involvement of the offending Hero Splendor Plus motorcycle
bearing No.KA-07-EC-8078 in the accident, rash and
negligent riding of the rider of offending vehicle and injuries
caused to deceased V.S. Vishwanath Reddy in the said
accident and the cause of his death.
15. Further, it is well settled principle of law that, in a case
relating to the Motor Accident Claims, the claimants are not
required to prove the case as required to be done in a
criminal trial. The Hon’ble Supreme Court in the case of
Parameshwari V/s Amir Chand and others, reported in
(2011) SCC 635, has clearly held that, “in a road accident
claim cases the strict principle of proof as in a criminal case
are not required.”
16. The Hon’ble Supreme Court, in the case of Bimla Devi
and others V/s Himachal Road Transport Corporation
and others, reported in (2009) 13 SCC 513, has clearly held
that, “in a case relating to the Motor Accident Claims, the
19 MVC No.2200/2022
claimants are merely required to establish their case on
touch stone of preponderance of probability and the
standard of proof on beyond reasonable doubt could not be
applied.”
17. Therefore, in the light of observations made in the
above cited decisions and for the above stated reasons, this
Court is of the considered opinion that, the petitioners have
successfully proved through cogent and corroborative
evidence that, the deceased V.S. Vishwanath Reddy has
succumbed to the injuries sustained in a road traffic
accident, occurred on 24-02-2022 at about 6.30 p.m., at
Yaraguntekatte Vempalli Cross, Srinivasapura Taluk, Kolar
District, due to the rash and negligent riding of the rider of
Hero Splendor Plus motorcycle bearing No.KA-07-EC-8078.
Hence, I answer Issue No.1 in Affirmative.
18. Issue No.2: While answering above issue, for the
reasons stated therein, this Court has already held that, the
20 MVC No.2200/2022
petitioners have successfully proved through cogent and
corroborative evidence that, the accident has caused due to
rash and negligent riding of the rider of Hero Splendor Plus
motorcycle bearing No.KA-07-EC-8078 and deceased V.S.
Vishwanath Reddy has sustained grievous injuries in the said
accident and succumbed to said injuries on 28-02-2022 at
about 4.00 a.m., while undergoing treatment at Victoria
Hospital, Bengaluru. Now the petitioners are required to
establish that, they are the legal representatives of the
deceased. In this regard, they have produced their
respective Aadhar cards and death certificate of deceased
V.S. Vishwanath Reddy, which are marked as Ex.P.10 to 13,
15 and 18. The said documents clearly goes to show that,
the petitioner No.1 is wife, petitioners No.2 and 3 are the
children and petitioner No.4 and 5 are the parents of
deceased V.S. Vishwanath Reddy. On the other hand, the
relationship of the petitioners with the deceased V.S.
Vishwanath Reddy is not specifically denied by the
21 MVC No.2200/2022
respondent No.2 in the case and even there is no rebuttal
evidence produced with respect to same. In such
circumstances, there is no impediment to believe the above
documents produced by the petitioners and hold that, the
petitioners are the legal representatives of deceased V.S.
Vishwanath Reddy.
19. The Hon’ble Supreme Court, in the case of National
Insurance Co. V/s Birender, reported in (2020) 11 SCC 356,
has clearly held that,
“The legal representatives of the
deceased could move application for
compensation by virtue of clause (c) of Section
166(1). The major, married son who is also
earning and not fully dependant on the
deceased, would be still covered by the
expression “legal representative” of the
deceased. This Court in Manjuri Bera (supra)
had expounded that liability to pay
compensation under the Act does not cease
because of absence of dependency of the
concerned legal representative. Notably, the
expression “legal representative” has not been
defined in the Act.
It is thus settled by now that the legal
representatives of the deceased have a right to
apply for compensation. Having said that, it
22 MVC No.2200/2022
must necessarily follow that even the major
married and earning sons of the deceased
being legal representatives have a right to
apply for compensation and it would be the
bounden duty of the Tribunal to consider the
application irrespective of the fact whether the
concerned legal representative was fully
dependent on the deceased and not to limit the
claim towards conventional heads only.”
20. According to the ratio laid down in above decision, the
legal representatives though not fully dependent on the
deceased are entitled to claim compensation under all the
heads i.e., under both conventional and non-conventional
heads. In order to determine the compensation, the age,
avocation, income, dependency, future prospects of the
deceased and other conventional heads are to be
ascertained.
21. The compensation towards loss of dependency: The
petitioner No.1 is wife, petitioners No.2 and 3 are the
children and petitioners No.4 and 5 are the parents of
deceased V.S. Vishwanath Reddy. The oral and documentary
evidence placed on record by the petitioners clearly
23 MVC No.2200/2022
established that, they are legal representatives of the
deceased V.S. Vishwanath Reddy and they were depending
on his income. Hence, the petitioners are entitled for
compensation under the head of loss of dependency. In
order to calculate the loss of dependency, the first step is to
determine the age and income of the deceased.
i) Age and income of the deceased: The
petitioners have averred that, the age of deceased as on the
date of accident was 47 years. To substantiate the same, the
petitioners have not produced any authenticated document.
But, as per the post-mortem report of deceased V.S.
Vishwanath Reddy, which is marked as Ex.P.2, the age of the
deceased was 47 years, as on the date of his death. There is
no rebuttal evidence to disbelieve the said document.
Therefore, the age of the deceased V.S. Vishwanath Reddy,
as on the date of accident, is considered as 47 years. It is
averred in the petition that, as on the date of accident the
deceased was hale and healthy and was working as
24 MVC No.2200/2022
carpenter-cum-agriculturist and also selling cows to
different markets and was earning a sum of Rs.40,000/- per
month. To substantiate the same, the petitioners have not
produced any document to show that, the deceased V.S.
Vishwanath Reddy was working as carpenter-cum-
agriculturist and also selling cows to different markets and
was earning a sum of Rs.40,000/- per month. In such
circumstances, there is no other option before this Court,
except to consider the notional income as per the guidelines
of the Karnataka State Legal Services Authority.
a) The Hon’ble High Court of Karnataka in the cases
of, G. T. Basavaraj V/s Niranjan and another, in MFA
No.7781/2016, judgment dated 11-08-2022, Ramanna and
another V/s Y. B. Mahesh and another in MFA
No.140/2017, judgment dated 16-01-2020 and New India
Assurance Co. Ltd., V/s Anusaya and others in MFA
No.101195/2014, judgment dated 05-01-2023, has clearly
held that, “when the income of the deceased is not proved,
25 MVC No.2200/2022
then the notional income as per the guidelines issued by
Karnataka State Legal Services Authority is to be adopted as
the income of the deceased.”
b) Admittedly, the accident has taken place in the
year 2022. Therefore, the notional income of the deceased
as per the guidelines issued by Karnataka State Legal
Services Authority is to be treated as Rs.15,500/- per month.
Therefore, the annual income of the deceased in the present
case is held as Rs.1,86,000/-.
ii) As per the ratio laid down by the Hon’ble
Supreme Court, in the case of National Insurance Co. Ltd.,
V/s Pranay Sethi and others, reported in (2017) 16 SCC
680, the legal heirs of deceased are also entitled for future
prospects of the deceased, though he was not a permanent
employee as on the date of death. Since the deceased was
aged about 47 years and was not a permanent employee,
the future prospects would be 25% of his income, which
comes to Rs.46,500/-. Therefore, the future prospects of the
26 MVC No.2200/2022
deceased is held as Rs.46,500/-. If this income is added to
the notional income, then it comes to Rs.2,32,500/-. Further,
the annual income of the deceased comes within the
exemption limits as per Income Tax Act.
iii) The deduction of personal expenses and
calculating the multiplier: The family of the deceased
consist of 5 persons i.e., petitioners No.1 to 5. The total
number of the dependents of the deceased are five.
Therefore, deduction towards the personal expenses of
deceased is taken as 1/4th of the total income, which comes
to Rs.58,125/-. After deducting 1/4th out of total income,
towards the personal expenses of deceased, the annual
income of the deceased is held as Rs.1,74,375/-.
iv) As on the date of death, the age of the deceased
was 47 years. As per the guidelines laid down by the Hon’ble
Supreme Court in the case of Sarla Verma and others V/s
Delhi Transport Corporation and another, reported in
2009 ACJ 1298 S.C., the appropriate multiplier in the present
27 MVC No.2200/2022
case is taken as 13. Accordingly, the compensation under
the head of loss of dependency is held at Rs.1,74,375/- x 13 =
Rs.22,66,875/-.
v) Compensation under conventional heads: In
the present case, admittedly the petitioner No.1 is wife,
petitioners No.2 and 3 are the children and petitioners No.4
and 5 are the parents of deceased V.S. Vishwanath Reddy.
Hence, the petitioners No.1 to 5 are entitled for
compensation under the head of spousal, parental and filial
consortium. As per the guidelines laid down by the Hon’ble
Supreme Court in the case of National Insurance Co. Ltd.
V/s Pranay Sethi and others, reported in (2017) 16 SCC
680, the compensation under the following conventional
heads is awarded:
a) Loss of estate - Rs. 15,000/-
b) Loss of consortium - Rs. 40,000/- each
c) Funeral expenses - Rs. 15,000/-
The compensation under above heads has to be
enhanced 10% for every 3 years. Seven years have been
28 MVC No.2200/2022
lapsed from the date of the judgment. Therefore, the
compensation under the above conventional heads is
enhanced by 20%, the loss of estate comes to Rs.18,000/-,
the loss of spousal, parental and filial consortium comes to
Rs.48,000/- each to petitioners No.1 to 5 and funeral
expenses comes to Rs.18,000/-.
vi) Medical expenses: The petitioners have deposed
that, they have incurred huge expenses towards medical
treatment and other charges. In order to prove the same,
they have produced 3 medical bills, as per Ex.P.9. All the bills
have been examined carefully and found that the petitioners
have spend total amount of Rs.2,003/- towards medical
expenses. Therefore, the petitioners are entitled for
Rs.2,003/- under the head of medical expenses.
22. Accordingly, the petitioners are entitled for
compensation under different heads as follows :
29 MVC No.2200/2022
Sl. Head of
Amount/Rs
No. Compensation
1. Loss of dependency Rs. 22,66,875-00
2. Loss of spousal, parental Rs. 2,40,000-00
and filial consortium
3. Loss of estate Rs. 18,000-00
4. Funeral expenses Rs. 18,000-00
5. Medical Expenses Rs. 2,003-00
Total Rs. 25,44,878-00
Therefore, this Court is of the considered opinion that,
the petitioners are entitled for compensation of
Rs.25,44,878/-, with interest at the rate of 6% per annum
from the date of petition till its realization.
23. Liability: Admittedly, as on the date of accident, the
respondent No.1 is the owner and respondent No.2 is the
insurer of the offending vehicle. As per Ex.R.3 insurance
policy, issued by the respondent No.2, in respect to
offending Hero Splendor Plus motorcycle bearing Reg.
No.KA-07-EC-8078, the policy was in force, as on the date of
accident. Further, the evidence placed on record by the
petitioners clearly establishes that, due to rash and
30 MVC No.2200/2022
negligent riding of the rider of offending Hero Splendor Plus
motorcycle bearing Reg. No. KA-07-EC-8078, the accident
has occurred and the deceased V.S. Vishwanath Reddy has
succumbed to grievous injuries sustained in the said
accident. In such circumstances, the respondent No.1 being
the owner of offending vehicle is vicariously liable to
compensate for the damage caused by the said vehicle. The
respondent No.2 being the insurer of the said vehicle has to
indemnify the respondent No.1.
24. But, the respondent No.2 insurance company has
taken specific contentions in its written statement that, the
driver of the offending Hero Splendor Plus motorcycle
bearing Reg. No. KA-07-EC-8078 was not holding valid and
effective driving licence to ride the said vehicle, as on the
date of accident and the said vehicle was not having valid
permit and fitness certificate to ply on the road. In such
circumstances, the burden was on the respondent No.1 to
prove that, his offending vehicle bearing Reg. No. KA-07-EC-
31 MVC No.2200/2022
8078 was having valid permit and fitness certificate as on
the date of accident and his rider was holding valid and
effective driving licence to ride the said vehicle. But, the
respondent no.1 has failed to discharge his burden in the
case, as he did not choose to appear and contest the case of
petitioners. On the other hand, in order to establish the
above contentions, the respondent No.2 has examined the
Superintendent of the Regional Transport Office, Kolar, as
R.W.1. The R.W.1 has deposed in his evidence that, as per his
office record no driving licence has been issued in favour of
Sri Venkataramana S/o late Siddappa, who the accused/rider
of offending Hero Splendor Plus motorcycle bearing Reg.
No. KA-07-EC-8078, at the relevant time of accident.
25. The learned counsel for respondent No.2 insurance
company has vehemently argued that, as on the date of
accident the rider of offending motorcycle was not holding
valid driving licence to ride the said vehicle and the
respondent No.1 having knowledge that the said
32 MVC No.2200/2022
rider/accused was not holding driving licence to ride the
said motorcycle, has entrusted his vehicle to him and
allowed him to ride the said motorcycle. As there is breach
of fundamental condition of Ex.R.3 insurance policy by the
insured/respondent No.1, insurance company is not liable to
indemnify the insured/owner of offending vehicle i.e.
respondent No.1. Further it is argued that, the Ex.R.3
Insurance Policy clearly speaks that, the policy covers the
risk provided the driver of insured vehicle holds a valid and
effective driving licence and he is not disqualified from
holding or obtaining such a licence. Further, the Ex.P.3
charge-sheet clearly speaks that, as on the date of accident
the accused/rider of the offending Splendor Plus motorcycle
bearing Reg. No.KA-07-EC-8078 rode the said vehicle without
holding valid and effective driving licence to drive the said
vehicle, the driver has been charge-sheeted for the offences
punishable under Sec.279, 337 and 304(A) of I.P.C., and the
owner of offending vehicle is charge-sheeted for offence
33 MVC No.2200/2022
U/Sec. 180 of Motor Vehicles Act. Admittedly, the said final
report/charge-sheet has not been challenged by the owner
or rider of offending motorcycle. Even, the petitioners have
not produced any document to show that, as on the date of
accident his rider was holding valid & effective driving
licence to ride the offending motorcycle. Further submitted
that, as there is breach of fundamental condition of Ex.R.3
insurance policy, the respondent No.2 is not liable to
indemnify the respondent No.1, in respect of any
compensation awarded to the petitioners by this Court. In
support of his arguments, the learned counsel for
respondent No.2 has relied on the following decision:
i) M/s. Tata AIG General Insurance Co. Ltd.,
V/s Manjunatha and others, in MFA
No.7018/2023 (MV-D) C/w MFA
No.2658/2024 (MV-D), dated 16-01-2025.
26. On the other hand, the learned counsel for petitioners
vehemently argued that, it is settled principle of law that,
even if there is breach of fundamental condition, recognised
34 MVC No.2200/2022
under Sec.149(2) of Motor vehicles Act, the insurance
company is liable to pay the third party and recover from the
insured.
27. In the present case, admittedly as on the date of
accident the rider of offending vehicle was not holding valid
licence to ride the said vehicle. Hence, there is clear breach
of fundamental condition of insurance policy by the owner
of offending vehicle i.e. respondent No.1. Further, there is
no evidence on record to show that, the respondent
No.1/owner of offending vehicle was not having knowledge
that, as on the date of accident the rider his vehicle was not
holding valid driving licence to ride the said motorcycle. As
the respondent No.1 did not choose to appear and defend
the case of the petitioners, there is no other option before
this Court, except to draw adverse inference against the
respondent No.1 and hold that, having knowledge that as on
the date of accident the rider of his vehicle was not holding
valid driving licence to ride the said vehicle had consciously
35 MVC No.2200/2022
handed over his vehicle to a person who did not possess
valid driving licence to ride the said vehicle and as such the
respondent No.1 cannot be permitted to take the benefit of
his wrong and the respondent No.2/Insurance Company is
entitled to raise a defence under Sec.149(2) of Motor
Vehicles Act.
28. But, in the present facts and circumstances of the
case, it is relevant to note the judgment of the Hon’ble High
Court of Karnataka, in the case of New India Assurance Co.
Ltd., Bijapur by its Divisional Manager V/s Yallavva and
another, reported in ILR 2020 Kar 2239, wherein it is
clearly held that, “i) Having regard to Section 149(1) R/w
Section 149(7), whenever a case falls under Section 149(2)
(a) and the same is successfully established or proved by
the Insurance Company, as per the twin tests laid by the
Hon’ble Supreme Court in Swaran Singh, nevertheless,
the insurer or Insurance Company is liable to satisfy the
award vis-à-vis a third party and is entitled to recover
36 MVC No.2200/2022
from the insured. This is irrespective of, the policy being
an Act policy in terms of Section 147 pertaining to
compulsory coverage of risks of third parties and other
classes of persons stated therein or a policy covering
other risks by specific contract being entered into in that
regard and where additional premium is paid by the
insured i.e., a contractual policy.
ii) The Insurer is liable to pay the third party and
recover from the insured even if there is breach of any
condition recognized under Section 149 (2), even if it is a
fundamental breach (that is breach of condition which is
the cause for the accident) and the insurer proves the
said breach in view of the mandate under Section 149(1)
of the Act. But, no such order can be passed against the
insurer, if, on the facts and circumstances of a case, a
finding is given by the court that the third party (injured
or deceased) had played any fraud or was in collusion
with the insured, individually or collectively, for a
37 MVC No.2200/2022
wrongful gain to themselves or cause wrongful loss to
the insurer.
iii) The Court can also fasten the absolute liability
on the insurer, if there is any breach of condition which
is enumerated under Section 149(2) of the Act or any
other condition of the policy if the Insurance Company
has waived breach of any such condition or has taken
the special responsibility to pay by collecting extra
premium by covering any type of risk depending upon
facts of each case.
iv) Thus, the rule of pay and recover is applicable in
view of the mandate in Section 149(4) of the Act and
even if there is a breach of the terms of the insurance
policy, the insurer is bound to satisfy the judgment and
award as if it were a judgment debtor, even if it satisfies
the twin tests enunciated by the Hon’ble Supreme Court
under Section 149(4)(a) of the Act.
38 MVC No.2200/2022
v) Before passing any order on the Insurance
Company to pay and recover, the Court has to examine
the facts and circumstances of each case and if it finds
that the victim, injured or the deceased, in a particular
case, was solely or jointly responsible for breach of such
fundamental condition by playing fraud or in collusion
with the insured, the Court may exercise its discretion
not to fasten the liability on the insurer.
vi) However, the court should not adopt the above
guideline as a general rule in all cases, but only under
peculiar facts and circumstances of each case and on
giving appropriate reasons.
vii) If the Insurance Company makes out a case
under Section 149(2)(b) of the Act, then also the
Insurance Company has to satisfy the award so far as
Rs.9,92,968/ third party is concerned, as it is the duty of
the Insurance Company to indemnify the insured on the
basis of the policy of the insurance and even when the
39 MVC No.2200/2022
contract of insurance itself is void, nevertheless the
liability to indemnify the insured would arise and insurer
is entitled to recover from the insured.
viii) Thus, in a case where Section 149(2)(b) applies
and the Insurance Company successfully establishes
that the policy is void, in such a case also, the insurer is
not absolved of its liability to satisfy the judgment or
award as rights or obligations would flow even from a
policy which is void vis-à-vis third party. In such a case,
the insurer is not completely absolved of its liability, the
insured would have to satisfy the award vis-à-vis the
third party and recover from the insured the amount
paid to the third party and may also have a right to seek
damages from the insured.
ix) The judgment of the Division Bench of this Court
in Subramanyam, holding that a pay and recovery order
cannot be made as there is no liability to pay or satisfy
the award or decree in respect of a case falling under
40 MVC No.2200/2022
Section 149(2) is not correct. Hence, that portion of the
judgment in Subramanyam, which states that if the case
falls within the scope of Section 149(2) of the Act and the
insurer is successful in establishing any of the defence as
stated therein, it would be completely absolved of its
liability to satisfy the award is also not correct and to
that extent, it is held to be bad in law.”
29. The Hon’ble High Court of Karnataka, in the above
case has clearly held that, even if there is breach of
fundamental condition by the owner of insured vehicle, the
insurer is not completely absolved of its liability, the insured
would have to satisfy the award vis-à-vis the third party and
recover the said amount from the insured and may also
have a right to seek damages from the insured. Further, it is
pertinent to note that, the Ex.R.3 insurance policy has been
issued prior to the coming into force of Motor Vehicle
(Amendment) Act, 2019. The Ex.R.3 insurance policy has
been issued on 05-08-2019 and it was valid from 05-08-2019
41 MVC No.2200/2022
to 04-08-2024. As per provision of Sec.147(4) of Motor
Vehicle Act, 1988, if the insurance policy is issued prior to
commencement of Motor Vehicle (Amendment) Act,
2019, the provision of this Act earlier to amendment
would apply. Under such circumstances, it can be said that,
even if the rider of the offending vehicle was not holding
valid driving licence to ride the said vehicle, while
exonerating the insurance company from its liability, the
respondent No.2 insurance company would be liable to pay
the compensation under pay and recovery clause, which was
available prior to commencement of Motor Vehicle
(Amendment) Act, 2019 and recover the said amount from
the insured/respondent No.1. In such circumstances, the
arguments advanced by the learned counsel for respondent
No.2 does not hold good and the ratio laid down in the
above cited decision relied by him are not applicable to the
present facts and circumstances of the case. On the other
hand, the arguments advanced by the learned counsel for
42 MVC No.2200/2022
the petitioners holds good. Therefore, in the light of ratio
laid down in the above decisions and for the reasons stated
supra, this Court is of the considered opinion that, the
respondent No.2 being the insurer of the offending vehicle
is primarily liable to pay the above compensation amount to
the petitioner and later recover the same from the owner of
offending vehicle/respondent No.1. Accordingly, holding
that the respondent No.2 is liable to pay compensation of
Rs.25,44,878/- to the petitioners, with interest at the rate of
6% per annum, from the date of petition till its realization, I
answer Issue No.2 in Partly Affirmative.
30. Issue No.3: In view of the above findings, I proceed to
pass the following order:
ORDER
The petition is partly allowed with
costs.
The petitioners are entitled for
compensation of Rs.25,44,878/- (Rupees
twenty five lakh, forty four thousand
43 MVC No.2200/2022eight hundred and seventy eight only)
with interest at the rate of 6% p.a., from
the date of petition till realisation.
The respondent No.2 is directed to
pay the above compensation amount to
the petitioner, within two months from
the date of this order and recover the
same from the respondent No.1 in the
very proceedings by filing an execution
petition.
The above compensation amount is
apportioned as follows:
Petitioner No.1 – Wife – 20%
Petitioner No.2 – Son – 20%
Petitioner No.3 – Son – 20%
Petitioner No.4 – Father – 20%
Petitioner No.5 – Mother – 20%
Out of total compensation amount
awarded in favour of petitioner No.1, 2,
4 & 5, 30% of the compensation amount
with proportionate interest shall be
deposited in their name as fixed deposit
in any nationalized bank for the period
44 MVC No.2200/2022of three years with liberty to draw the
accrued interest periodically and the
remaining 70% amount with
proportionate interest shall be released
in their favour, through e-payment on
proper identification and verification.
The entire compensation amount
with proportionate interest awarded in
favour of petitioner No.3, shall be
deposited in his name as fixed deposit in
any nationalized bank, till he attains the
age of majority.
Advocate’s fee is fixed at Rs.2,000/-.
Draw award accordingly.
(Dictated to the stenographer, directly on computer, typed by him,
corrected and then pronounced in the open Court this the 21 st day of April,
2025)
(Mohammed Yunus Athani)
Member, MACT, Bengaluru.
ANNEXURE
Witnesses examined on behalf of petitioners
P.W.1: Bhagyamma W/o Late V.S. Vishwanath
Reddy
45 MVC No.2200/2022
Documents marked on behalf of petitioners
Ex.P.1: True copy of F.I.R.
Ex.P.2: True copy of Post-mortem Report
Ex.P.3: Certified copy of Charge-sheet
Ex.P.4: Certified copy of Sketch
Ex.P.5: Certified copy of Spot Mahazar
Ex.P.6: Certified copy of Inquest
Ex.P.7: Certified copy of M.V.A. Report
Ex.P.8: Certified copy of First Information
Statement
Ex.P.9: Medical Bills (total 3)
Ex.P.10 to Notarized copy of Aadhar Cards of
13: petitioners No.1, 3 to 5
Ex.P.14: Original Eye Donation Certificate
Ex.P.15: Aadhar Card of Petitioner No.2
Ex.P.16: X-Rays (total 2)
Ex.P.17: Scanning Reports (total 3)
Ex.P.18: Death Certificate
Witnesses examined on behalf of respondents
R.W.1: Pushpalatha W/o Balakrishna
R.W.2: Likith K.C. S/o Chidananda K.P.
Documents marked on behalf of respondents
Ex.R.1: Authorization Letter
Ex.R.2: Authorization Letter
Ex.R.3: True copy of Insurance Policy
(Mohammed Yunus Athani)
Member, MACT, Bengaluru.
Digitally signed
MOHAMMED by MOHAMMED
YUNUS A
YUNUS A ATHANI
ATHANI Date: 2025.04.23
13:28:29 +0530
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